The Meaning of Religious Freedom

Students in my U.S. Constitutional Law course were recently introduced to the confusing and sometimes contradicting Supreme Court jurisprudence related to religious liberty. This confusion is primarily the result of a struggle that has been taking place among the Justices on the Supreme Court for several decades over the meaning of these words:

Congress shall make law respecting the establishment of religion or free exercise thereof.

Some see the words "respecting the establishment of religion" as a command for strict church/state separation, while others see it simply as a bar on the federal government from creating a national church or religion. The gulf between these two positions is enormous and multiple views landing somewhere in between these two poles have been expressed by Justices, making this perhaps the most confusing area of American constitutional law.

Justice Antonin Scalia is perhaps the most outspoken advocate on the court of a very limited reading of the so-called establishment clause. Speaking at an event in Louisiana recently, the Justice said:

the idea that government must be neutral between religion and unbelief is not grounded in the country’s constitutional traditions and that God has been good to the United States because Americans honor him.

Scalia went on to note that the government should not favor one religion over another, but there is nothing in the American constitutional tradition that demands equal treatment between religion and non-religion.

Failing to Answer as a Strategy

A quick review of how a case is filed in common law countries. The plaintiff begins by filing a pleading called a complaint (or claim in England), which states the facts of the case (from the plaintiff's perspective) and the legal claims. The next step calls for the defendant to file an answer to the complaint. In class we learned that failure to file this answer will usually result in the plaintiff winning the case. In the United States this is often referred to as a default judgment or in England a judgment in default. Recently the Chelsea Football Club was sued by one of its employees. After receiving the claim, Chelsea opted not to file an answer, thus resulting in them losing the case. An amateur mistake made by the football club's high paid legal advocates? Not all. To learn why check out this post at Legal Cheek.

Langauge Unbecoming of a Judge?

Readers of recent Supreme Court opinions in both the United Kingdom and United States might be surprised by some of the language used by Justices to describe the arguments set forth by their fellow Justices. In England, it has apparently become so bad that the President of the UK Supreme Court has now publicly called for his fellow Justices to show restraint when writing their opinions. As the Telegraph reports:

The president of the Supreme Court has chastised judges, saying that while it is "fun" to throw insults at each other they are damaging the reputation of the court. Lord Neuberger of Abbotsbury urged lawmakers to stop their “abuse” and “hyperbolic criticism” of one another in their judgements because they risk undermining the authority of the judicial process.

This act of "throwing insults" is nothing new at the U.S. Supreme Court. Justice Antonin Scalia has been doing it for almost thirty years calling the views of his fellow Justices "silly" "absurd" and "feeble."

Can Muslims Be Banned From Entering the United States?

Donald Trump is no stranger to controversy. In fact, he craves it. His most recently controversial statement, however, has raised an interesting constitutional question: Would it be constitutional to exclude all Muslims from entering the United States? (for a primer on this issue in German see "Trump für komplettes Muslim-Einreiseverbot in die USA"). Interestingly, there is a split of opinion among American academics regarding this question, and one of the reasons is a case that was discussed here early this month. For a taste of the some of the conflicting views regarding this question see here, here and here.

Judicial Review of Administrative Acts

Students in my American Constitutional Law course were recently exposed to the complex area of American Administrative Law concerning when and what kind of administrative acts the U.S. federal courts may review. A few weeks late, but nevertheless relatively timely, Forbes has published a short article about a case heading to the U.S. Supreme Court concerning an agency interpretation of federal law. The case concerns a recent Obama administrative rule broadening the definition of "waters of the United States." The term is found in the Clean Water Act, which gives the government the authority to prohibit landowners from building on certain land because of environmental concerns. According to Forbes:

The court’s decision to hear U.S. Army Corps of Engineers v. Hawkes Co. follows the Obama administration’s enactment of a new Clean Water Rule that puts millions of additional acres within the definition of “Waters of the U.S.” covered by the Clean Water Act. If the Supreme Court rules for the government in Hawkes, landowners will be left with a difficult choice if regulators decide their property contains wetlands: They can abandon all commercial use of it, apply for a permit with a high chance of being rejected, or risk ruinous fines and even jail if they modify the land.

Ultimately, this case boils down to the definition of "final agency action." As we learned in class, federal courts generally refrain from reviewing agency actions unless they are considered to be final. This short article is certainly worth a read. 

The Reach of Constitutional Rights

Prof. Noah Feldman recently started his Bloomberg View column with the question "can an American detained and allegedly tortured by the FBI at black sites outside the U.S. sue for damages? The answer: NO. As we discussed in my American Constitutional Law course, the rights found in the U.S. constitution only protect people when they are inside the boundaries of the country (with a few exceptions). Feldman explains why a recent court decision dealing with the question he poses was wrongly decided. It's worth a read. So is the blog post by Lyle Denniston at the blog Constitution Daily.

Disappearing Precedent

The Marshall Project recently ran a very informative news piece on its website about unpublished opinions. As students in my courses learn, not all court decisions turn into precedent. Of course, only the highest courts create binding precedent, and even their decisions can only be precedent if they are published. A court may choose to "unpublish" its opinion and in so doing the opinion will not be treated by future courts as precedent. At least most of the times. Those interested in understanding this oddity of American common law should read this short and informative article.

The Shadow of Korematsu

With all the overheated rhetoric coming from some Republican presidential candidates about how Muslims in America should be treated, one cannot help but think back to some of the darker episodes of American history where fear overran reason. Perhaps no other episode sticks out more than the internment of Japanese-Americans in the aftermath of the attacks on Pearl Harbor. While the internment was bad enough, the fact that the Supreme Court went along with such a policy is even more shameful, at least in retrospect.

Writing for the Court in the (in)famous Korematsu case, Justice Black said:

"It should be noted, to begin with, that all legal restrictions which curtail the civil rights of a single racial group are immediately suspect. That is not to say that all such restrictions are unconstitutional. It is to say that courts must subject them to the most rigid scrutiny. Pressing public necessity may sometimes justify the existence of such restrictions; racial antagonism never can,"

For Black and the majority, the idea that there could be Japanese spies circulating among the populace in the immediate aftermath of a Japanese attack was sufficient justification to round up over 120,000 people and place them into camps. The case is still good law today, never having been overturned by the U.S. Supreme Court, and has actually been cited by a few American politicians as precedent for the idea of rounding up recent refugees from Syria. 

Students who are interested in learning more about the Korematsu case and how it relates to Syrian refugees are encouraged to check out a recent post over at the Constitutional Daily Blog as well as a recent article by Matt Ford of the Atlantic.

On sixteen occasions the office of the Vice President of the United States has been left vacant due to either : 1) resignation, 2) death or 3) succession to the presidency (because the President had died in office). Prior to the passage of the 25th Amendment, the office simply remained vacant until the next election. As the wikipedia page of the 25h Amendment notes:

With President John F. Kennedy’s assassination, the need for a clear way to determine presidential succession, especially with the new reality of the Cold War and its frightening technologies,^[14] forced Congress into action.^[14] The new President, Lyndon B. Johnson, had once suffered a heart attack,^[15] and the next two people in line for the presidency were Speaker of the House John McCormack,^[16] who was 71 years old,^[14] and Senate President pro tempore Carl Hayden,^[16] who was 86 years old.

In short, the situation was ripe for one of those rare moments when the country was ready and willing to amend its constitution. A mere six years after being added to the constitution, the amendment was tested with resignation of Vice President Spiro Agnew. To take his place President Richard Nixon selected Rep. Gerald Ford to be the new VP. Under the new amendment, his appointment needed to be confirmed by a majority of both houses of Congress. It was.

And just in time. An informative post on the Constitution Daily blog explains how another aspect of the 25th Amendment, the temporary replacement of the President, was also in play as the Watergate scandal was threatening the Nixon presidency.

Presidential Pardons

As is usually the case in late November, the press (even the German press) was filled with stories about the President exercising his pardon power. Of course, the pardon in this case was for a turkey, something that over the past several decades has become a tradition in the United States marking the beginning of the Thanksgiving holiday weekend. However, students in my constitutional law course know (or at least they should) that the president's power to pardon individuals is real and important. The Economist has a nice, short "explainer" regarding how this power works. Well worth the read.

The First American Constitution

At some point or another most of my students have heard me say that the constitution we study today in American Constitutional Law is actually America's second constitution. The first one, the Article of Confederation, were an abysmal failure, leading to its total repeal and replacement with what we now call the Constitution of the United States of America. So why did this first one fail? As usual, the National Constitutional Center has this question well covered with a post entitled "10 reasons why America's first constitution failed." A nice a short read that is worth your time. Check it out!

The Importance of Dissenting Opinions

Students in all of my courses are at one point or another confronted with dissenting opinions found in appellate court cases. While the dissenting opinion is a somewhat new feature of German constitutional jurisprudence, it has a long and storied history in American constitutional law. A recent short article in the magazine Reason underscores the importance of dissents.

Youngstown Steel Case

Last night in my Constitutional Law course we discussed the landmark Youngstown Sheet & Tube case. The National Constitution Center has a wonderful summary of the case and the various opinions filed in it. Students wishing to obtain a better understanding of the case should take a look at the post. There is also a link to a video shown on C-SPAN about the case.

The Origins of Judicial Review in the United States

Students of my American Constitutional law course, and to a lesser extent all my other courses, are aware that the U.S. Supreme Court is basically a constitutional court. However, a careful reading of Article Three of the U.S. Constitution shows that in fact the Supreme Court was not expressly given the power to review whether actions taken by the other two branches of government violate the constitution. As it turns out, the Court gave itself this power in perhaps the most important decision ever issued by the Court: Marbury v. Madison. C-Span has a video of a discussion concerning the history of this case and its impact. For all you American constitutional history junkies out there, this video is worth checking out.

The Role of Judge and Jury

Other than the use of case law, there is perhaps nothing that distinguishes the common law system from the civil law system more than the roles played by judge and jury in a trial. This is particularly so when it comes sentencing (criminal cases) and remedies (civil cases). The jury, as we learn in class, has the role of "finding the facts." In other words, they hear the stories told by the parties and then try to determine what "really" happened. In civil cases it is also up to the jury to determine the appropriate remedy upon a finding that the defendant was liable. In criminal cases, on the other hand, once the jury has found a defendant guilty, their job is done. The sentencing of the convicted rests solely with the judge. With one minor exception in the United States: Capital Punishment. In class, I tend to over generalize this a bit in order to keep it simple. In reality, the Supreme Court's decision in Ring v. Arizona does not explicitly place the decision to execute the convicted solely in the hands of the jury. However, a case being heard by the Court this session might change that.

Term Limits for Florida Judges?

A recent Miami Herald article about a movement to amend the Florida Constitution to allow for judicial term limits serves as a good reminder that each state controls the manner in which their state court judges are selected and how long each may serve. The article explains that:

In Florida, justices and appeals court judges serve six-year terms. They aren’t reelected as trial court judges are; rather, they go before voters in an up-or-down vote as to whether they should stay in office.

The merit retention system was added to Florida’s Constitution by voters in the 1970s, but no justice has been removed from office because of it. From 1980 to 2014, 42 Supreme Court justices have faced a merit retention vote. All received a majority, allowing them to stay in office.

Read

This illustrates how some states have a mixture of the selection processes we discussed in class. Here we see a system that has competitive elections for its lower court judges while uses the retention system for its higher court judges. Those wondering why some would want to limit the term of higher court judges need look no further than this quote from the article:

Rep. John Wood, R-Winter Haven, said term limits for the state’s seven justices and 64 appellate judges would ensure “diversity of legal philosophy,” “enhance the proper role of the judiciary,” and “create a true balance of power” with the Legislature and the governor, both already subject to term limits.

Read more here: http://www.miamiherald.com/news/politics-government

It seems relatively clear that advocates of this changes believe that judges in Florida have become too entrenched and too powerful.

Death Penalty Podcast

Yesterday I wrote about whether the death penalty is heading for extinction in the United States. Today I'd like to draw your attention to a podcast found on the National Constitution Center's website featuring answers to questions like:

Does the Cruel and Unusual Punishment Clause prohibit the death penalty? If not, are some modern methods of execution “barbaric” enough to violate the Clause? What standard should courts use to determine if a punishment is “cruel and unusual”?

Check it out and see if you can follow along with the discussion!

The End of the Death Penalty in America?

Recent statements by Justice Antonin Scalia have created somewhat of a firestorm among members of the legal media. In a recent speech at the University of Minnesota the Supreme Court Justice remarked that he would not be surprised if a majority of the Court concluded that the death penalty violated the U.S. Constitution. Students interested in this issue should take a quick look at (as well as listen to) a story on the Minnesota Public Radio website.

Choosing the Author of Supreme Court Opinion

Both the Washington Post and New York Times recently ran articles about how Chief Justice Roberts distributes opinion drafting assignments among the nine Justices of the United States Supreme Court. Both articles are worth reading for anyone interested in the inner workings of the Court.

The Lochner Case

Students attending my American Constitutional Law class are now somewhat familiar with the debate that has raged for well over a century concerning the meaning of the Commerce Clause, found in Article One, Section Eight of the U.S. Constitution. As students now know, a central aspect of this debate involves how one views the role government should play in regulating business. In addition to reading the Commerce Clause narrowly, advocates of a more laissez faire approach also believe that the concept of "liberty" found in the Constitution includes the right to contract. Under this right, the government may not interfere with a contract between employer and employee. During the so-called Lochner Era, the Court used this reasoning to strike down several federal and state laws that sought to regulate the employer/employee relationship. While Lochner was eventually overturned by the Court, its legacy lives on. Students interested in understanding the role Lochner plays in modern American constitutional jurisprudence might want to check this discussion on C-Span. The Constitutional Center also has a nice summary of the case.

Donald Trump and the UK Supreme Court

How on earth could I resist posting a link to an article that mentions Donald Trump and the UK Supreme Court in the same sentence? For students in my JTMCL and Common Law Legal Systems courses (Münster), this article also reinforces the idea that the UK Supreme Court is the court of last resort (with some minor exceptions) for court systems found in England/Wales, Northern Ireland and in this case Scotland.

Judicial Elections

Today is election day in the United States, and while there are no federal elections taking place, several states have candidates as well as issues on their ballots. As students in most of my courses become aware, many states in the United States select their judges via an open, competitive elections. The wisdom of such elections is always a matter of debate, and the recent campaign for the Pennsylvania Supreme Court has shined the light once again on some of the more troubling aspects of judicial elections: the influence of campaign contributions and outside spending by issue advocacy groups. In a piece entitled "Mystery donor group fuels attack ads in PA Supreme Court race" Eric Holmberg reports on how these advocacy groups are attempting to influence voters while at the same time hiding their identity. Reports like these have led some to question whether it is time to do away with judicial elections in the Keystone State. 

Jury Selection and Race in the United States

At some point students in most of my courses are introduced to the method used in the United States to select juries, a method that basically gives advocates a limited number of "objections" to potential jurors. These objections take the form of peremptory challenges and can be used by advocates to remove potential jurors from the jury pool for any reason . . . except for the wrong reason. In the Batson case the U.S. Supreme Court ruled that a "wrong reason" included removing a potential juror because of race. As Garrett Epps of the Atlantic writes, proving that race is a factor in the removal of a potential juror has been difficult and now is the focus of case being heard today by the Court:

Since 1986, the Court has extended that rule to peremptory challenges by defendants as well as prosecutors; to peremptory challenges of potential jurors even if they are of a different race as the defendant; to peremptory challenges based on sex as well as race; and to peremptory challenges in civil, as well as criminal, cases. Batson, thus, is a landmark—though at best a confusing one. That confusion may be on display next week, when the Supreme Court takes up a jury-selection case that is literally a matter of life and death. Foster v. Chatman tests how strong the evidence of racial motive must be in a jury selection case before a defendant can prevail on the issue.

Students are strongly encouraged to read Epp's wonderful summary of the case that also includes a little of the history concerning the use of peremptory challenges by common law courts. Along these same lines a piece in Slate by Mark Stern and an opinion piece in the New York Times by former United States Deputy Attorney General for the Bush Administration Larry Thompson are also worth reading.

Checks and Balances

One of the six big ideas we discussed in American Constitutional Law is the principle of checks and balances that can be found throughout the U.S. Constitution. One example is how vacancies in the federal judiciary are filled. The process involves the President nominating an individual and then the U.S. Senate votes whether to confirm the nomination. This check on presidential power is taken seriously and has become increasingly politicized by both parties. Politico recently ran an article with the headline "Angry GOP Senate freezes out Obama nominees" illustrating nicely how nominations for the federal bench have been caught up in the political polarization that is a hallmark of today's Washington D.C..

The Origins of the U.S. Constitution

To add to the short history lesson I gave students in my American Constitutional Law course, I am providing this link to a wonderful and short summary of Battle of Yorktown, which marked the end of the American Revolution and the birth of a new nation.

Should the US Do Away With Lifetime Appointment of Federal Judges?

By now, anyone reading this blog should have already heard me say in class that Federal judges in the United States are appointed for life. The actual language in Article III of the U.S. Constitution says that judges "shall hold their offices during good behavior," which has been interpreted to mean as long as they behave and are not removed by the impeachment process, they remain a federal judge. To say that not everyone is enamored with this setup might be a bit of an understatement. Probably since the first controversial issued by the Supreme Court way back when there have been people calling for the terms of the Justices to be limited. Kenneth Jost recently made this argument in a blog post that is well worth the read.

At Age 92, Judge Finds Balance

For those of you who thought I was joking when I said some federal judges in the United States work into their 90s, check out this very nice piece in the New York times about federal judge Robert Sweet.

Sentencing Phase

In my Münster class yesterday, we discussed the role of judges. One of the things I pointed out was that in criminal cases, it is the job of the jury to determine guilt, but it is the job of the judge to punish someone found guilty.

However, as I also mentioned, there is one exception to this general rule: capital punishment. The Boston Marathon bomber case offers an example of this. The defendant was recently found guilty of the bombing (actually he had admitted to participating, but was arguing that he was unduly influenced by his older brother), and now it is time to determine whether the state can execute him for the crime. That decision is left to the jury.

U.S. Chief Justice Called to Jury Duty

Jury duty in the United States is considered to be an obligation of citizenship. If you are called to serve, it is your duty as a citizen to go. However, not everyone is eligible to serve. As I have pointed out or will point out in class, many states refuse to let lawyers serve on a jury. However, not all have this restriction, and when a high public officials, many of whom have law degrees, are called to serve it sometimes generates headlines. The most recent example of this occurred last week when the Chief Justice of the United States was called to jury duty:

John G. Roberts Jr. showed up for jury duty in Rockville like other civic-minded citizens and was being considered for a civil trial in a case involving a car crash. He answered two questions in open court about relatives — noting that his sister in Indiana is a nurse, and his brother-in-law was with Indiana State Police — but none about his own line of work, which would be listed on a questionnaire. He then talked with attorneys and the judge privately at the bench. Roberts was not selected, and left court without comment.

The Washington Post article from which the above quote is taken goes on to note that Justice Kagen was also recently called to duty. She too was not selected to serve, though.

The National Constitution Center has more on why the Chief Justice was eligible to sit on a jury.

U.S. Supreme Court Asked to Look Abroad for Guidance on Same Sex Marriage

An article with this headline appeared last week in the New York Times. In class I have often pointed out that international law or law from foreign jurisdictions plays little role in American law. But there are exceptions, and there most certainly is no rule against Justices using foreign law as persuasive precedent. In fact, as the Times article points out, the Justices have on occasion used foreign law as a guide, for instance Justice Kennedy wrote in a 2005 opinion concerning the death penalty for juveniles: “The opinion of the world community, while not controlling our outcome, does provide respected and significant confirmation for our own conclusions.”

Jury Selection and the Death Penalty

In class, at least some of my classes, we talked about the jury selection process taking place in Colorado where a person is being charged with shooting and killing several people in a movie theater. The case received an enormous amount of media attention, requiring a huge jury pool to be formed and jury selection process that could take weeks if not months. On the other side of the country the infamous Boston Marathon bombers is about to be tried, and there too jury selection will be tricky business. Yet this time one's views on the death penalty will also come into play. Should it? The AP has an interesting article that addresses this question.

Language Matters

Or maybe not. From a legal perspective it most certainly does, but news outlets misuse legal English often. Case in point: a recent headline regarding an appeal of three lower court rulings read "Gay marriage bans in three southern states on trial at U.S. appeals court." Did you get that? "ON TRIAL".

Students in all of my courses should understanding why the use of the word trial is inappropriate here. If you don't, go back and review the meaning of a trial.

Supreme Court asked to decide what "accompanying" means

Students in all three of my courses this semester have been or will soon be exposed to American concepts of statutory. The U.S. Supreme Court recently also had to tackle these concepts in a case dealing with what the word "accompanying" means. According to the New York Times:

After a botched bank robbery in 2008 in North Carolina, Larry Whitfield entered the home of a 79-year-old woman, telling her he needed a place to hide. He directed the woman, who was upset and crying, to move with him from her living room to another room some nine feet away.

Those few steps exposed Mr. Whitfield to prosecution under a federal law that calls for a 10-year mandatory minimum sentence when a criminal “forces any person to accompany him” during a bank robbery or while fleeing.

They also gave rise to a lively Supreme Court argument on Tuesday, one largely concerned with the meaning of the word “accompany.”

Read the rest of the article to see some of the questions the Justices asked as they struggled to find  meaning for this commonly used word.

The Boston Marathon Bomber and Pro-Death Penalty Juries

Does the jury selection process in the United States result in pro-death penalty juries? According to one journalist watching the developments in the Boston Marathon Bomber trial, it does. To see how, check our her article in the Boston Globe.

Going on Senior Status

Because the U.S. Constitution gives federal court judges lifetime appointments, and because implicitly this means Congress cannot set a mandatory retirement age for federal court judges, some judges work well beyond the normal retirement age. However, many of these judges do not work full-time, rather they go on "senior status." A recent Boston Globe article explains:

The senior status arrangement, enjoyed by some 500 federal judges around the country, allows older judges to go into semiretirement while mentoring the fresher faces on the bench and helping to clear the court’s cases. 

Federal judges at all three levels can take advantage of this status, however, when a Supreme Court Justice retires, they may only serve as lower court judges under their senior status. Once the judge takes senior status, s/he effectively goes into retirement allowing the President to appoint a new judge, with the consent of the Senate, of course.

$100K for Swearing at the Cops!

Anyone who has bothered to take a look at some of my older postings will know that a favorite topic of mine is getting arrested for swearing in public. It is well established that free speech rights under the U.S. Constitution protect even vulgar speech like swearing. As a recent article in the Atlanta Journal Constitution points out in an article about an Atlanta woman who was arrested for swearing at the police:

“Ms. Barnes’ comments to the police may have been offensive, but no one in the United States of America should be chased down and arrested for their free speech,” said lawyer Cynthia Counts, who represented Barnes in her civil and criminal litigation. “The officers argued that it was a bad neighborhood and you shouldn’t disrespect the police because it could create issues,” she added.

Counts noted federal courts had overuled such reasoning after 1918 sedition laws made “disloyal, profane, scurrilous, or abusive language” about the U.S. government, flag or armed forces — or that caused people to view government institutions with contempt — a felony.

These are losers for cities and counties. In this instance, Cobb County settled out of court with this potty mouth for $100,000!! Hopefully, in the future Cobb County will train its police officers to ignore offensive speech directed at them.

Getting a Hearing Before the Supreme Court: Only for Elites?

This week Reuters published a special report about the lawyers who get their cases heard before the U.S. Supreme Court. Their conclusion: if you want to access the Supreme Court you had better hire one of the 66 lawyers who seem to repeatedly be granted access to the Court. Part one of the report is entitled "A cadre of well-connected attorneys has honed the art of getting the Supreme Court to take up cases - and business is capitalizing on their expertise," which should give you an idea of the point the report is trying to make. The report is rather long but will give students a very good understanding of the process of having a case heard before America's highest court.

The Power to Declare War

When was the last time the United States formally declared war on another country?

Students in my American Law courses (at least the ones who have already completed the Introduction Course) know the answer to this, and understand that the U.S. Constitution is a bit confusing when it comes to the question of when the President can send the military oversees to engage in battle.

Article I of the Constitution clearly give the Congress the power to declare war, however the President is Commander-in-Chief of the military and charged with defending the interests of the country. Custom plays an enormous role in this question, and arguably it has become custom to allow the President to commit troops oversees without a formal declaration of war, as this recent post on the National Constitution Center's blog clearly illustrates. 

California Governor Criticized for Judical Appointments

California's Governor Jerry Brown has now appointed three judges to the California Supreme Court, and as this editorial at SFGate notes, none of them have judicial experience. The writer of the editorial thinks that's a problem. Read the rest of it to find out why.

Divided Government and the Appointment of Supreme Court Justices

By now, students in all three of my courses are familiar with how vacancies on the United States Supreme Court are filled. And those of my students who have been paying attention to developments in the United States realize that Republicans will soon be taking control of the United States Senate, the body charged with approving the President's nominees to the Supreme Court. Lyle Denniston has an interesting post on the National Constitution Center website explaining who likely it would for a nominee of President Obama's to get through the hostile Senate.

How Presidents Have Used Their Veto Power

While we have not expressly discussed the President's veto power in my courses this semester, this power does fit into the general discussion we have had concerning American government, and at least someone in one of my courses was curious enough about this power to ask whether the President can exercise this power for any reason, or only when he feels the bill he is being asked to sign violates the Constitution. I recently came across a short and informative blog post on the National Constitution Center's blog that anyone interested in the President's veto power should read.

Nevada Gets an Appeals Court

The AP reports that Nevada is joining the 40 other states that have an intermediate level appeals court. To be honest, I'm amazed there are that many states without an appeals court. Anyway, the article points out why not having an intermediate level appeals court can cause problems:

That meant that every appeal from each of the state's 82 district courts - death penalty convictions, medical malpractice judgments, prison food complaints, administrative hearing reviews, driver's license revocations - had to be heard by a very busy seven-member Nevada Supreme Court.

The article goes on to note that last year the Supreme Court rendered about 2,300 rulings!

Americans Don't Trust Their Courts

At least that is what Francis Barry argues in a recent Bloomberg News piece. Barry argues that the increasing number of amendments to state constitutions show a growing distrust of the judiciary. To understand why, give this short piece a read.

Time for a change?

A recent Billings Gazette editorial points out the problems with open elections for judges in this era of outside groups spending unlimited money on trying to influence elections. The editorial also points out two other ways that states select judges, which might be more appropriate for Montana. The editorial is short and very informative.

Judge Retains Seat

From the Associated Press: a day after elections an Illinois Supreme Court Justice appears to have retained his seat. This is a wonderful opportunity to review how some judges in the United States are selected. Here is what the AP had to say:

ST. LOUIS — An Illinois Supreme Court justice targeted for ouster by plaintiffs' attorneys who spent more than $1 million publicly characterizing him as partial to corporate interests appears to have retained his seat, which he won a decade ago in a race that set national spending records.

With more than 99 percent of Tuesday's votes counted, Lloyd Karmeier finished less than 1 percentage point above the 60 percent threshold he needed for retention. Several of the 37 southernmost Illinois counties making up Karmeier's district still were counting absentee and provisional ballots Wednesday.

Just from these two paragraphs we can tell a few things about how Supreme Court Justices are keep their seats in Illinois. While we cannot tell how they are actually selected (whether the governor does the selecting or some kind of committee), we can tell that each Justice must face a retention vote, and in order to survive the vote the judge must obtain a super majority of 60% of the vote. We can also tell that Justices on the Illinois Supreme Court apparently represent only a part of the state. This likely is meant to ensure that the Court is made up of Justices from throughout the entire state.

To review: some judges must face retention votes when their term expires. A retention vote is nothing more than having the name of the judge on the ballot with a "Yes" or "No" answer to the question of whether the judge should be retained. In Illinois a judge must get 60% yes votes in order to keep his or her seat. Remember, not all retention votes run this way. Each state can have their own system.

Studying Law is Easy . . .

At least that is what Bundesgerichtshof Judge Thomas Fischer recently told Die Zeit. Fischer makes numerous observations about the shortcomings of the German legal education (whether they are fair or not, I will not judge) and more importantly, he draws a comparison to the study of law in common law countries:

ZEIT Campus: Was fehlt den Absolventen?

Fischer: Meistens die Softskills, also die sozialpsychologischen Fähigkeiten. Die werden fast nicht gelehrt: Verhandlungskompetenz erwirbt man im Studium nicht, den meisten mangelt es auch an kommunikativer Sorgfalt.

ZEIT Campus: Warum wäre das wichtig?

Fischer: Jura ist eine Wissenschaft, die sich fast ausschließlich mit Sprache beschäftigt. Sie müssen im Beruf Reden halten, Positionen verteidigen, Konfliktsituationen lösen und vor allem Empathie für fremde Personen haben.

ZEIT Campus: Kann man das an der Uni lernen?

Fischer: Im angloamerikanischen Raum fordern Professoren die Studenten ständig auf, ihre Meinung zu sagen und sich mit Gegenpositionen auseinanderzusetzen. Sie sind von Anfang an in einem System, das sie in die Lage versetzt, juristische Berufe auszuüben.

The rest of the interview is well worth a read. His views on the Repetitorien (he refers to it as a "sinnloser Aufwand") and why making big money working for a large law firm might not be worth it are amusing. The comments made by readers are rather amusing as well.

Politicians as Supreme Court Justices

There once was a time where tried and test politicians were appointed to the highest court in America. Perhaps the most famous of these is former Chief Justice Earl Warren, who was Governor of California before being appointed to the high court, and one former President sat on the Court AFTER serving as President! The National Constitutional Center recently posted an article tracing the history of appointing politicians to the high court in the context of whether President Obama might one day be interesting in serving there.

Judicial Elections, Jury Nullification?

The headline of a recent Great Fall Tribune article reads "Supreme Court Candidate supports jury nullification." Within the next few weeks students in all of my courses should understand what the article means by "court candidate" (yes, some judges in America are elected by popular vote!) and "jury nullification." For a sneak peak, take a look at the article.

Does Supreme Court Silence Mean Something

The National Constitutional Center recently posted an article focusing on what the Supreme Court means to say when it rejects hearing a case on appeal. The Center's Lyle Denniston explains:

At the beginning of each term, in early October, the court turns down hundreds of cases that have built up on its docket over its summer recess. If it had to explain each refusal, the task would be simply unmanageable. But it is frustrating, to the public as a whole and to lawyers, lower court judges and journalists, when the court does not say why it denies review of a really big case, or cases.

That happened, on opening day this term, when the Justices turned aside seven appeals dealing with the issue of same-sex marriage. In each of those seven, coming from five different states, a federal appeals court had ruled unconstitutional a state’s ban on such marriages – and each appeals court had done so with a full opinion, going over all of the reasons.

The rest of the explanation can be found here.

Five Key UK Supreme Court Cases

Lord Neuberger talks about the five most important cases decided by the relatively new UK Supreme Court in the past five years. The article is worth a quick read.

So what happens when a superstar gets selected for jury duty in New York? Find out here.

SZ: "Fünf ältere Herren gegen das liberale Amerika"

The SZ recently had a piece with the catchy title above. Their take concerned a recent Supreme Court decision that some claim is anti-woman. Students of American Law should give it a quick look. It's in German!

The always informative Constitution Center website has a fascinating post asking the question of whether it is too hard to amend the U.S. Constitution. For a review of what is necessary to make changes to the constitution, I encourage you to check out the post.

Can Congress Sue the President

Republicans in Congress are mad. They are mad at President Obama for, as they claim, failing to enforce the laws they have passed. They are so mad that they are threatening to sue the President. But can they do that? In class, as part of our discussion about the "cases and controversies" requirement found in Article III of the Constitution, I have basically told you that the answer is no. See what the experts think.

Unanimity on the Supreme Court

As students of American law well know, at least those who have read U.S. Supreme Court decisions, the Court rarely speaks with one voice. Almost every opinion issued by the Court these days seems to have concurring and dissenting opinions attached to them. There is an interesting discussion going on among legal scholars in the U.S. about a new rash of unanimous rulings issued by the Court over the past few weeks. Some argue that this is a dawning of a new day, while others say that this unanimity is nothing more than window dressing (i.e. it is a mirage, it does not really exists). Follow the links above to get a taste of this very important discussion. Your ability to understand the discussion is one way to test whether you understand the importance of the rationale in a written court opinion.

CSI and Juries

Much has been written about the so-called CSI effect on juries. Wikipedia defines the CSI effect as:

any of several ways in which the exaggerated portrayal of forensic science on crime television shows such as CSI: Crime Scene Investigation influences public perception. The term most often refers to the belief that jurors have come to demand more forensic evidence in criminal trials, thereby raising the effective standard of proof for prosecutors.

But recently Slate Magazine had an article casting the CSI effect in a different light:

How could forensic evidence, widely seen as factual and unbiased, nearly send an innocent person to his death? The answer is profoundly disturbing—and suggests that for every Earl Washington freed, untold more are sent to their deaths. Far from an infallible science, forensics is a decades-long experiment in which undertrained lab workers jettison the scientific method in favor of speedy results that fit prosecutors’ hunches. No one knows exactly how many people have been wrongly imprisoned—or executed—due to flawed forensics.

Anyone interested in how shows like CSI might influence jury trials in America should read the rest of this article.

If You Think Today's Congress Is A Hostile Place, Think Again

The National Constitution Center has a great history piece on how violent things in the Congress leading up the American Civil War:

On May 22, 1856, Representative Preston Brooks attacked Senator Charles Sumner with a metal-tipped cane, leaving Sumner seriously injured. Brooks received a $300 fine. The incident started when Senator Sumner, an abolitionist from Massachusetts, went on a two-day rant on the Senate floor after an incident in Kansas. Sumner made fun of Brooks’ relative, Senator Andrew Butler of South Carolina, who had suffered from a stroke, and he used language that compared the South’s use of slavery to prostitution.

Supreme Court Under Attack

The Supreme Court has recently come under attack by several academics for reasons ranging from its unwillingness to televise its hearings to the life time terms (this link will take you to interesting piece arguing for term limits of the Justices) that the Justices serve. But in a recent blog post Prof. Geoffrey Stone asks the enticing question: "Do we need the Supreme Court?"

Stone sets forth 20 of the more controversial/landmark decisions and then asks:

How many of these 20 decisions do you think reflect good policy for the nation? Do you agree with the Supreme Court that on such matters the People should not be permitted through their elected representatives to act contrary to these decisions? What do you think led you to think that some decisions were "good" while others were "bad? Can you discern any principle that leads you to judge some decisions as "good" and others as "bad"? Or is it just a matter of opinion? When all is said and done, has the Supreme Court's exercise of the power of judicial review been good or bad for the nation? Do we need the Supreme Court?

His point obviously is whether nine judges should be determining important questions of law or whether elected representatives should be.  

Jealous Wife Cannot Be Charged Under International Treaty

Yesterday the U.S. Supreme Court ruled that jealous wife who used a mixture of chemical toxins to harm her husband's lover could not be charged with a violation of the Chemical Weapons Treaty signed by the U.S. and incorporated into federal criminal law. The case provides us with an opportunity to review some of the concepts we have been discussing in American Constitutional Law. Specifically, the article raises questions about the role of the 10th Amendment in this case, and whether treaties can trump trample on state authority.

Are Judges Really Like Referees?

In class I sometimes characterize the role of common law judges as being akin to referees. In a recent editorial entitled "Wading through the malarkey of judges as umpires" Prof. Alan Garfield makes a convincing argument why sometimes judges aren't really like referees. To be clear, when I talk about judges being like referees, I mean the role they play at the trial court level. Here Prof. Garfield is talking about appellate court judges, specifically Supreme Court Justices, whose job primarily is to apply the law, not oversee a trial. I encourage you read his piece.

Judges for Sale

The New York Times is most certainly not a fan of judicial elections. As students in my courses know, many states in the United States select their judges through an open election process. In a recent editorial, the New York illustrated why this might be sometimes problematic:

In North Carolina’s Supreme Court primary on May 5, for example, Justice Robin Hudson endured attack ads charging that she coddled child molesters and “sided with the predators” in a dissent while on the bench. The ad’s source was not her two opponents but a shadowy independent group that received $900,000 from the Republican State Leadership Committee in Washington, which channels donations from corporations and individuals to promote conservatives in state politics.

 You can read the rest of the editorial here.

Term Limits for Supreme Court Justices?

An editorial in The Week recently made the argument that it's time for America to limit the terms of its federal judges:

"Unlike in nearly every other democracy in the world, justices appointed to our highest court remain there for life. This is purportedly done to promote judicial independence. But in reality these lifelong Supreme Court appointments generate an absurd political spectacle: A court that is both nakedly partisan and less democratic."

 You can find the rest of the piece here.

Americans Want Term Limits for Supreme Court

A new survey of Americans shows that a majority of them would like members of the Supreme Court to have term limits (something similar to the time limits placed on members of the Bundesverfassungsgericht). As students in my courses know, or will soon learn, federal court judges in the United States serve for life terms once they are appointed to the bench. As students in my Osnabrück courses should know, in order to impose such term limits, the language of the U.S. Constitution (Article III) will need to be changed, which is very unlikely for the reasons we discussed/will discuss in class.

Selection of Judges in the United States

The Salt Lake Tribune recently published a very well-written editorial by the Chief Justice of the Utah Supreme Court, which does an excellent job of explaining how the retention system of judicial selection works. Students interested in understanding how this method of judicial selection operates are encouraged to give it a read.

Taking the Fifth

The Constitution Center has a great post explaining what "taking the Fifth" means:

Someone pleading the Fifth Amendment in a public proceeding is ingrained in our popular culture, thanks for decades of movies, television shows, and public hearings where the accused defiantly refuses to testify in a moment of high drama. In reality, a person isn’t pleading the entire Fifth Amendment, but just the part that refers to self-incrimination.

The post goes on to explain how this right was expanded to state court proceedings and hearings beyond the criminal courts. FFA students should take particular note of this article, as it touches upon concepts that you most certainly will be exposed to during your FFA studies.

No Bar Exam Required

The State of Iowa is considering joining Wisconsin as the only states to allow graduates from in-state law schools to start practicing law immediately after graduation. No practical training, no bar exam! The Des Moines Register has a short article explaining the proposal:

Graduates of Iowa’s two law schools could begin practicing law in the state soon after graduation rather than waiting until they pass the bar exam, under a proposal before the Iowa Supreme Court.

The proposal would apply only to law school graduates who stay in Iowa to work. Law school graduates would still have to pass an ethics exam and screening and background checks, according to the proposal. It also would require students to take an Iowa-specific law and procedure course.

Loser Pays Coming to America?

For the most part, the U.S. court system has tended to reject a loser pay system. As a general rule, each side is responsible for covering the cost of their legal representation, regardless of who wins. There are of course exceptions to this general rule, normally set forth in statutes that require a defendant in certain circumstances to pay the legal fees of the plaintiff should the plaintiff prevail.

But the problem of "patent trolls" is making the federal courts and Congress rethink their aversion to a pure loser pay system. Bloomberg News has more on this developing story.

Federal Courts Divided Over NSA Spy Program

Two recent decisions by lower federal courts illustrate a big difference between how the court systems in the U.S. and Germany operate, at least the constitutional courts.

In Germany, the Basic Law allows for individuals to apply directly to the Constitutional Court if they believe state actors have violated one of their constitutional rights. This centralized form of judicial review has the advantage of avoiding the problem raised by the title of this post: namely two lower courts applying the constitution to similar facts in a different manner.

In the United States, on the other, where the constitution does not explicitly call for the creation of a constitutional court, questions concerning whether one's constitutional rights have been violated by state actors are answered by lower federal courts. The result, as is often the case, is a similar set facts can come before two different courts, and these courts can come to polar opposite conclusions.

Andrew Cohen's recent article in The Atlantic entitled "Is the NSA's Spying Constitutional? It Depends Which Judge You Ask" highlights how a decentralized system of judicial review can be messy at times. Of course, both the lower court decisions to which Cohen is alluding will be appealed, and eventually an important question of constitutional law like this one will be heard by the nation's highest court, the U.S. Supreme Court, so even in a decentralized system of judicial review, important questions of constitutional law are eventually settled.

For more on these NSA cases see Cohen's interview on PBS news and this article in the Süddeutsche Zeitung.

Another English Judge Questions Legitimacy of ECHR Rulings

Last week I linked to an article where a senior English judge questioned whether English courts should have to follow rulings issued by the European Court of Human Rights. A few days ago the former head of the English judiciary made a similar remark:

Declaring that Strasbourg "is not superior to our supreme court" in London, Lord Judge, who retired in October, said parliamentary sovereignty should not be exported to "a foreign court".

He is the third senior judicial figure in recent weeks to warn about the dangers of an emerging "democratic deficit" if the ECHR continues to evolve into in effect a law-making body and forces the UK government to give prisoners the vote against parliament's expressed will.

U.S. Federal Appeals Process

I recently came across an article headlined "Appeals court upholds law banning political ads on public broadcasting." When I read deeper into the article, I came across this passage:

Previously, a three-judge panel of the appeals court struck down the ban on political advertising but upheld the ban on for-profit advertising. But the federal government sought a rehearing in front of the full panel of judges.

This is an excellent example of an en banc hearing before a federal court of appeals, although the phrase "en banc" appears no where in the article. Remember, when one loses in the appeals court, one has two further options for appeal, either file a request with the Supreme Court (the normal route) or ask the full bench of the appeals court to review the ruling made by the three judge appellate panel. That is what happened here.

As an aside, being granted either form of appeal is extremely rare.

What is the D.C. Circuit?

Students learning about the structure of the U.S. federal court system probably focus more on the geographical divisions of the appeals court more than any other aspect of the system, primarily because that is something upon which I put particular emphasis in our lecture about the system.

While I do mention that there are two other Courts of Appeal in addition to the 11 regional appeals courts, I really do a disservice to the D.C. Court of Appeals by not talking more about it. This court is arguably the second most important court in the federal court system for the reasons set forth in an excellent Q&A put together by The Blog of the Legal Times. Students interested in obtaining a deeper knowledge of the U.S. federal court system should give this a read.

English Judge Questions Supremacy of Human Rights Court

The UK's longest serving Court of Appeal judge is causing a bit of stir in English legal circles. As part of a series of lectures, Sir John Laws (high courts judges automatically obtain a title upon appointment to the court) said, "I have, in common with others, come to think that this approach [treating Strasbourg decisions as authoritative] represents an important wrong turning in our law." Coverage by the Guardian also notes:

Laws, the longest-serving lord justice of appeal, questioned an important principle laid down nearly 10 years ago by Lord Bingham, who was then senior law lord.

In a case called Ullah, Bingham had said that the correct interpretation of the convention could be authoritatively expounded only by the human rights court in Strasbourg. "The meaning of the convention should be uniform throughout the states [that are] party to it," Bingham added.

But Laws disagreed. "There may perfectly properly be different answers to some human rights issues in different states on different facts. I think the Strasbourg court should recognise this."

 The remainder of the article is worth the read.

Salon.com has an incredible take down of the American legal education system:

Since at least 1985, the American Bar Association’s Section on Legal Education has published annual statistics about the rates of enrollment at American law schools, the costs of attendance, and the eventual employment of law graduates. Looking at how these numbers have changed since the financial crisis of 2008, one thing is clear: Law schools are doing quite well for themselves. Tuition at private law schools has steadily increased, climbing from a mean of $34,298 in 2008 to a mean of $40,634 today – an increase that, by my calculations, outpaces inflation by about $3,000.

The remainder of the articles goes on to describe American law schools as being " toxic and hyper-capitalist," and in the long run a bad investment. It is a long read, but perhaps the contrast between the author's view of U.S. law schools and your own experience here in Germany might be of interest to you.

When You Don't Want the Supreme Court Take Your Case

We sometimes forget that one of the two parties whose case is being petitioned to the U.S. Supreme Court actually would rather the Court not take their case. Of course this is because one of the parties won in the Court of Appeals. The Washington Post has some recent examples of this desire to have your case rejected.

Taking A Case to the U.S. Supreme Court

It isn't easy. At least that is what these young Iowa attorneys say in this very well done short article about their journey to the U.S. Supreme Court.

German Asylum Case Headed to Supreme Court?

A recent press release from the Home School Legal Defense Association (HSLDA) gives us the details of this unique case that might be headed to the United States Supreme Court:

In April 2013, a three-judge panel of the Sixth Circuit Court of Appeals sustained the Obama administration’s revocation of asylum granted to the family in 2010.

The original immigration judge, Lawrence O. Burman, granted the Romeike family asylum on January 26, 2010, under the Federal Immigration and Naturalization Act (INA) because Germany’s national policy of suppressing homeschooling violated their religious faith and because German authorities were improperly motivated to suppress homeschoolers as a social group.

In its ruling against the Romeikes, the Sixth Circuit rejected the judge’s findings, stating that Germany’s harsh treatment of homeschoolers did not amount to persecution, and that the German authorities were not motivated by an improper purpose.

After losing the Court of Appeals, the normal route is to request a hearing before the U.S. Supreme Court. As students will recall, a hearing before the highest court is not a matter of right. Instead, the Court grants permission to only those cases it wishes to hear. It takes four of the nine Justices to agree to hear the case in order for it to reach the Court, and of the thousands of requests that the Court receives each year, usually only around 75 are heard.

Court TV Revisted

I have written on a few occasions about the debate over whether court hearings should be televised (see here and here). While the debate rages on, more and more courts are opting to open up their courtrooms to television: the latest high profile court being the UK Court of Appeal! The BBC has more with a video!

The Origin of Judical Lifetime Appointments in the United States

A quick reading of the U.S. Constitution might leave one puzzled as to how long federal court judges are allowed to serve. No where in the document does it specifically say that federal judges are lifetime appointments. Instead, the Constitution mysteriously says that judges shall serve "during good behavior." Lyle Denniston, veteran Supreme Court watcher, explains how this phrase came to mean lifetime appointment.

Reigning in lower court judges

Judges in the federal courts system of the United States must abide by a judicial code of conduct, and when they deviate from that code, they can be removed from a case, as one U.S. District Court Judge recently found out.

Time for a Change?

It is now a time honored tradition for American academics to every now and then call for a new constitution in the United States. The 224 year-old document that has changed little since its ratification has served the country relatively well, many argue, but in light of today's extreme political partisanship, it's time for a change. A recent piece in The Atlantic makes this argument, and also suggests that perhaps there is a model for what works in a modern democracy. The model? Germany's Basic Law!

The Infamous McDonalds Coffee Case

Perhaps one of the most misunderstand stories of the American legal system and American legal culture.

Quid Pro Quo?

A report recently released by the Wisconsin Center for Investigative Journalism finds that judges in Wisconsin tend to rule in favor of attorneys who gave them campaign donations. Wisconsin, as you might have already gathered, is one of those states that elect their judges. And as you also might know, campaign donations play an enormously important role in the modern American electoral system.

The Impact of European Law on England

The impact of European law, in this case a ruling from the ECHR, EU law, and English law was on full display last week as the UK Supreme Court ruled that a right to vote for prisoners does not exist. An earlier ruling by ECHR said that a blanket ban on voting rights for prisoners, like the one that exists in England, violates European human rights law, but the UK Supreme Court refused to enforce this right in the United Kingdom. The BBC, Guardian, and Euro News have more.

Getting Before the Supreme Court

Having your case heard before the United States Supreme Court is no easy task. In fact, as this USA Today article points out, its down right almost impossible.

New Rule: You Must Be a Lawyer to Argue a Case in the Supreme Court

This seems like stating the obvious, but up until recently, there was nothing prohibiting non-lawyers from arguing cases before the U.S. Supreme Court. While this hasn't happened in over 30 years, technically non-lawyers could argue cases brought on their own behalf before the Court. Until now. The AP has more.

Why Electing Judges is a Bad Idea

Nothing shocking here. According to a recent study, judges are more likely to give friendly rulings to those individuals and corporations that donate to their election campaign. As students in my courses will recall, many states elect their judges! More on the study can be found here.

The Supreme Court's troubling past

The Washington Post's George Will recently devoted one of his columns to the
Korematsu case. Students in my Constitutional Law course might want to take a look at this piece as it relates to what we will be discussing on Thursday.

Original Jurisdiction

The Desert News had a recent article that began by saying "The U.S. Supreme Court is set to hear arguments Tuesday in a case that could have implications for states that rely on interstate water compacts." The case in question concerns a water rights dispute between six western states, and is an excellent example of case that begins and ends in the U.S. Supreme Court, as the Court has original jurisdiction to hear disputes between the states.

If you are reading the words "original jurisdiction" and asking yourself what that means, it is time to go back and review your class notes.

Jury Nullification in Action

For those students interested in reading about a case where jury nullification was used to find a defendant not guilty, take look at this post.

More on the UK Supreme Court

I just came across this nice little introductory video about the UK Supreme Court. According to its website:

This introductory film is primarily aimed at GSCE/Standard Grade students and explores the role and the workings of the Supreme Court, the only court with UK-wide jurisdiction and the highest court in the land. It explains its relationship to the Judicial Committee of the Privy Council, the highest court for British Overseas Territories and a number of Commonwealth countries.

The Right Jury Size

More on juries, this time related to the size of juries in the United States. Slate Magazine recently ran an interesting article on jury size noting that all but two states require juries that contain 12 people to give unanimous verdicts. The article runs down nicely how the Supreme Court has ruled in the past regarding jury size:

Isn’t a verdict in a criminal trial supposed to be unanimous? The answer is yes in 48 states and yes if the case is tried in a federal court. But two states, Oregon and Louisiana, allow convictions by a non-unanimous vote. In both states, the threshold in non-capital cases is 10 to 2.* Arguably, Herrera had to go to jail for the crime of living in Oregon.

The Supreme Court has allowed this conflict between federal and state law (as well as between state law and conventional wisdom) to persist for more than 40 years, during which time it has come up with a mishmash of seemingly arbitrary rules about what constitutes a legal trial. A jury of six, the Supreme Court has decided, is constitutional (Williams v. Florida, 1970). A jury of five, however, is not constitutional (Ballew v. Georgia, 1978). In a jury of six, conviction must be unanimous (Burch v. Louisiana, 1979). But in a jury of 12, conviction does not have to be unanimous (Johnson v. Louisiana and Apodaca v. Oregon, 1972). (At the time of these decisions, Louisiana required a 9-to-3 vote to convict in non.capital cases, which the court upheld as constitutional. The state has since changed its threshold to 10 to 2.)

Learing to love Jury Duty

Students in all of my courses have at some time or another been exposed to the common law jury system. Some argue that a strength of this system is the ability for everyday people to take part in the administration of justice. Yet, many Americans dread being called for jury duty. In a recent Atlantic post, Andrew Guthrie Ferguson argues that Americans need to embrace, not dread jury duty. He writes:

A jury summons is an invitation to participation. Jurors are asked to involve themselves in some of the most personal, sensational, and terrifying events in a community. It is real life, usually real tragedy, played out in court. Jurors confront disturbing facts, bloody images, or heart-wrenching testimony. A jury may have to decide whether a man lives or dies, or whether a multimillion-dollar company goes bankrupt. A jury will have to pass judgment in a way that will have real-world effects on both parties before the court. This active role was not accidental. Participation in jury service teaches the skills required for democratic self-government. Being a juror lets you develop the habits and skills of citizenship.

The "Informal" UK Supreme Court

The Financial Times recently ran an interesting piece on the UK Supreme Court subtitle: "The most striking fact about this place is its informality. Grandeur and remoteness have been swept away." Students in my "Juristische Technik und Methodik des Common Law" course in Münster my find it interesting.

Listening to the Supreme Court

Ever wonder what oral arguments in front of the U.S. Supreme Court sound like? Wonder no longer. NPR reports, fittingly via a podcast of a segment from one of its radio programs, that the Oyez Project now has digitized oral arguments heard before the Court dating all the way back to 1955! The manner in which arguments are conducted before the Court have changed dramatically over the past several decades. As a point of reference, take a quick listen to an argument from the early 1960s and then compare that to a recent argument. Today's Justices are much more active with their questioning. That is except for one. Justice Clarence Thomas has famously not asked a question during oral argument for several years now.

Agency Alphabet Soup

Early on in the massive manhunt for the suspects involved in the Boston Marathon bombing, the Atlantic ran an interesting piece entitled "The Alphabet Soup of Agencies Hunting in Boston." Students in my American Administrative Law course last week heard me say that the structure of agencies in the United States amounted to a web of various agencies with overlapping responsibilities. This manhunt and the agencies involved in it provides an excellent example of what I was talking about:

A Lawyer Shortage in America?

Normally when one thinks of lawyers in America, one thinks of a glut of lawyers. With good reason. America has more lawyers per person (1 lawyer for every 265 people) then any other country in the world. For comparison sake, Germany has 1 lawyer for 593 people.

But there appears to be a lawyer shortage in some parts of America. The New York recently ran an interesting article about a remote parts of Nebraska and South Dakota where no lawyer can be found for more then a 100 mile radius. The situation is so desperate that the State of South Dakota recently passed a law offering subsidies to those lawyers willing to move these remote parts of the state.

Shakespare famously wrote "the first thing we do, let's kill all the lawyers." But in South Dakota they are looking to kill, rather they are looking subsidize their existence! 

Law School Applications Drop in U.S.

The Atlantic has a fascinating piece on how law school applications in the United States have dropped to a thirty-year low. A few bullet points from the article:

• applications have dropped 38% from where they were in 2010.
• the average public law school graduate left school with over $75,000 in debt from tuition costs.
• the law profession is bloated and there are no jobs to be had.

Those interested in getting an idea of what American law students face upon completion of their studies should give this article a glance.